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2013 DIGILAW 543 (PAT)

Jhaman Bhagat v. Khiru Roy

2013-04-24

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard learned counsel for the appellant. 2. The appellant was plaintiff before the trial court and is aggrieved by the judgement and decree dated 28-05-2010 passed by learned District Judge, Vaishali at Hajipur in Title Appeal No. 30/2006 whereby he confirmed the judgement and decree dated 29-08-2006 and 05-09-2006 respectively, passed by learned Munsif- I, Vaishali in Title Suit No. 120 of 1997 whereby he had dismissed the suit. 3. The second appeal has been placed before me for hearing under Order 41 Rule 11 of the Code of Civil Procedure. 4. It seems that the suit was set for ex parte hearing against all the defendants as they did not appear inspite of service of notice and publication of notice in the gazette. 5. The plaintiff filed the said Title Suit No. 120/1997 seeking a relief for declaration of his right, title and possession over the suit land as described in schedule-1 of the plaint. 6. Briefly stated, the plaintiff’s case in his plaint was that the suit land appertaining to old khata No. 89, old khesra No. 40, area 48 decimals belonged to his ancestor, Subaran. The old khatiyan as regards the suit land was prepared in the name of Subaran and the plaintiff happened to be his great grand son. The other plaintiffs and defendants third party in the title suit were descendants of Subaran. 7. The plaintiff pleaded that during the revisional survey operation new khesra No. 82 was carved out corresponding to old khesra No. 40 measuring 46 decimals and during such operation the land was wrongly entered in the name of father of defendant second set, Harikishun Bhagat and Harkhit Bhagat. According to plaintiff/appellant, he continued in possession over the suit land. The plaintiff, however, alleged that the said Harikishun Bhagat and Harkit Bhagat, without having any title and possession over the suit land, sold the same on the basis of revisional survey entry to Ramprit Rai and Ramchandra Rai. Ramprit Rai was defendant No.1 in the title suit whose sons are respondents Nos. 1 and 2 in the present second appeal. Sons of Ramchandra Rai were defendants before the trial court, one of whom has been impleaded as respondent No.5 in the present second appeal. Ramprit Rai was defendant No.1 in the title suit whose sons are respondents Nos. 1 and 2 in the present second appeal. Sons of Ramchandra Rai were defendants before the trial court, one of whom has been impleaded as respondent No.5 in the present second appeal. The plaintiff claimed that the vendees of Ramprit Rai and Ramchandra Rai did never come in possession over the suit land after execution of the sale deeds in their favour on 19-12-1969 and the plaintiff continued his possession over the suit land till 1990. 8. The plaintiff also claimed before the trial court that the sale deed dated 19-12-1969 was forged and fabricated and that Harikishun Bhagat and Ramchandra Rai had no right and title to execute the sale deed with respect to land of old khesra No. 40. The plaintiff further claimed that as the vendees of Harikishun Bhagat and Harkhit Bhagat started causing obstruction in peaceful enjoyment and possession over the suit property, the father of defendant third set filed a petition before the S.D.O., Hajipur on 17-05-1980 for initiation of a proceeding under section 144 of the Code of Criminal Procedure. The proceeding was subsequently converted into a proceeding under section 145 of Code of Criminal Procedure. However, finally, learned S.D.O., Hajipur declared possession of the defendant first party over the suit land by order dated 24-07-1977. The plea of the plaintiff before the trial court was that after passing of the order by the S.D.O., Hajipur dated 24-07-1977, the defendant first party became bold and dispossessed the plaintiff from the suit land on 27-07-1996 which led to institution of title suit No. 120 of 1997. 9. As has been noted above, the proceeding before the trial court was set ex parte in the absence of the defendants which included the co-sharers of the plaintiff. 10. The plaintiff, in course of trial before the trial court, led evidence both oral and documentary. The plaintiff examined altogether five witnesses to prove his title. Plaintiff No.1 was examined as PW 1. PW 2 happened to be the survey knowing advocate commissioner who proved the comparative map and his report, exhibit 2 and 3 respectively. PW 3, Siyaram Singh, supported the case of plaintiff in his evidence to the effect that defendant first party had dispossessed the plaintiff and defendant third party from the suit property on 27-07-1996. PW 2 happened to be the survey knowing advocate commissioner who proved the comparative map and his report, exhibit 2 and 3 respectively. PW 3, Siyaram Singh, supported the case of plaintiff in his evidence to the effect that defendant first party had dispossessed the plaintiff and defendant third party from the suit property on 27-07-1996. PW 4 was a formal witness who stated that he had gone to Ramprit Bhagat to demand original sale deed dated 19-12-1969 but, according to him, he refused to give the sale deed. Ganesh Choudhary, PW 5, has proved the execution of sale deed dated 19-12-1969 in favour of the Ramchandra Rai and Ramprit Rai. 11. In support of the title, the plaintiff brought on record the documentary evidence being rent receipts, comparative map prepared by advocate commissioner, certified copy of C.S. khatiyan of the suit land appertaining to old khata No. 40 khata No. 89 (exhibit-4) recorded in the name of Subaran, certified copy of revisional survey khatiyan of khesra No. 82, khata No. 339 as also certified copy of sale deed dated 19-12-1969 (exhibit-7). 12. On the basis of pleadings of the plaintiff, learned trial court framed altogether four issues including issues No. 2 and 3 which are being quoted hereinbelow:– “(2) Whether the plaintiffs have right title and possession over the suit land? (3) Whether the plaintiffs have been dispossessed from the suit property on 27-07-1996 by the defendant first party and whether the plaintiffs were in possession over the suit property prior to the aforesaid dispossession?” 13. Considering issue No.3, on the basis of oral and documentary evidence brought on record by the plaintiff, learned trial court came to the finding that the plaintiff or the defendant third set could not prove that they had possession over the suit land till the alleged date of their dispossession, i.e., 27-07-1996. Learned trial court, accordingly, held that the plaintiff did not have possession over the suit property prior to 27-07-1996 and, therefore, there was no question of his dispossession on 27-07-1996. 14. Dealing with issue No.2, learned trial court held again on the basis of evidence on record that plaintiff/ appellant did not have title over the suit land. Learned trial court took into account the fact there was no material on record to establish title of the plaintiff over the suit property. 14. Dealing with issue No.2, learned trial court held again on the basis of evidence on record that plaintiff/ appellant did not have title over the suit land. Learned trial court took into account the fact there was no material on record to establish title of the plaintiff over the suit property. Learned trial court also took into account the fact that sale deed was executed in the year 1969 itself. 15. The plaintiff, thereafter, preferred appeal against the judgement and decree of learned trial court vide Title Appeal No.30/ 2006. 16. Learned first appellate court discussing the evidence on record pointed out that plaintiff filed two Maliki receipts in course of evidence (exhibit-1 and 1/a) alleged to have been issued in Fasli Year 1360 and 1361 by Harendra Patwari and beyond these two rent receipts no other rent receipt was filed on behalf of the plaintiff with respect to suit land of recent year after abolition of Jamindari to show that suit land remained in possession of the plaintiff after abolition of Jamindari and that name of plaintiff and his ancestor was mutated in the Government sirista. Learned first appellate court considered the fact that no khata and khesra number of the land had been mentioned in the receipt relied upon by the plaintiff. Learned first appellate court concurred with the finding of learned trial court that the plaintiff failed to produce any cogent evidence to show that Subaran was ancestor of the plaintiff and after abolition of Jamindari suit land was recorded in the name of plaintiff or his ancestor in Government sirista. Learned first appellate court concurred with the finding that the plaintiff failed to prove his story of possession till the date of dispossession, i.e. 27-07-1996. It appears that no document had been filed on behalf of the plaintiff to show that the suit land was recorded in the name of plaintiff or his ancestor after abolition of Jamindari and the name had been mutated in Government sirista and the receipts had been issued in his name. 17. In view of above, learned first appellate court dismissed the appeal concurring with the findings of fact arrived at by learned court below. 18. Learned counsel for the appellant has submitted that the defendants chose not to oppose the relief sought for by the plaintiff/ appellant. 17. In view of above, learned first appellate court dismissed the appeal concurring with the findings of fact arrived at by learned court below. 18. Learned counsel for the appellant has submitted that the defendants chose not to oppose the relief sought for by the plaintiff/ appellant. He submits that the defendants have a duty to prove their case, at least prima facie, before the courts below that they acquired valid title over the suit property after having purchased from the vendees whose names were wrongly recorded in R.S. khatiyan. He further submits that in the absence of any opposition as regards plaintiff’s possession over the suit land, the courts below wrongly decided the issue of possession against the plaintiff. 19. From the perusal of judgements of the courts below, I find that the same are based on appreciation of evidence available on record. The findings of the courts below, on facts, being concurrent, the High Court cannot disturb such finding unless the same can be said to be perverse being contrary to evidence or without any evidence. The High Court cannot re-appreciate the evidence in exercise of power under section 100 of the Code of Civil Procedure. From the pleadings of plaintiff/appellant and the evidence led on his behalf, in course of trial, as have been recorded in the judgements of the courts below, I find that over and above two receipts on the basis of C.S. entry, there was no documentary evidence adduced by the plaintiff, in course of trial, in support of his title over the suit land. Learned courts below have taken note of the fact that no khata and khesra No. had been mentioned in both the receipts. The courts below have come to specific finding of fact that the plaintiff could not prove the fact that he was great grand son of Subaran, the recorded tenant. The plaintiff failed to prove his possession also concurrently before the courts below. 20. At the first place I am of the opinion that learned counsel for the appellant could not point out any infirmity in the judgements of the courts below. Further, it is settled law that High Court in exercise of under section 100 of the Code of Civil Procedure can not interfere with the findings of facts unless they are shown to be perverse. Further, it is settled law that High Court in exercise of under section 100 of the Code of Civil Procedure can not interfere with the findings of facts unless they are shown to be perverse. Reference may be made in this regard to the judgements of Supreme Court reported in (2006) 11 SCC 587 , Sugani (Mst.) Vs. Rameshwar Das and another (2007) 15 SCC 546, Gurdev Kaur Vs. Kaki. In view of above, keeping in mind the settled law with respect to scope and limitation of exercise of jurisdiction under section 100 of the Code of Civil Procedure, I do not find any merit so as to admit the present second appeal as it does not involve any substantial question of law. The appeal is, accordingly, dismissed.